State v. Ercolano

• Citation: 79 N.J. 25,397 A.2d 1062
• Parties: STATE of New Jersey, Plaintiff-Appellant, v. Anthony ERCOLANO, Defendant-Respondent.
• Decision Date: 12 January 1979
• Court: United States State Supreme Court (New Jersey)

Page 25

79 N.J. 25

397 A.2d 1062

STATE of New Jersey, Plaintiff-Appellant, v. Anthony ERCOLANO, Defendant-Respondent.

Supreme Court of New Jersey.

Argued May 9, 1978.

Decided Jan. 12, 1979.

Paul A. Massaro, Asst. Prosecutor, for plaintiff-appellant (John H. Stamler, Prosecutor, attorney).

William F. Lamb, Deputy Atty. Gen., for amicus curiae Atty. Gen. of New Jersey (John J. Degnan, Atty. Gen., attorney).

David R. Arrajj, designated counsel, East Orange, for amicus curiae Public Defender of New Jersey (Stanley C. Van Ness, Public Defender, attorney; Ezra D. Rosenberg, Asst. Deputy Public Defender, on the brief).

Dennis D. S. McAlevy, Jersey City, did not appear on behalf of respondent but relied on the brief and argument of the amicus curiae Public Defender (Russell & McAlevy, Jersey City, attorneys).

The opinion of the court was delivered by

CONFORD, P. J. A. D. (temporarily assigned).

We confront here the same general question we dealt with in State v. Slockbower, 79 N.J. 1, 397 A.2d 1050, decided this day. That is the matter of the circumstances under which the police in arresting an individual may take custody of his automobile (I. e., impound it) and search it for purposes of making an inventory of its contents. In State v. Slockbower the arrest was for a motor vehicle offense. We there held such action by the police was in violation of the federal and State constitutional protections against unreasonable search and seizure "unless the driver either consents or is given a reasonable opportunity to make other arrangements for the custody of the vehicle." (397 A.2d p. 1051). Although the arrest here was for conspiracy of bookmaking, we hold the Slockbower rule still applicable in the absence of any indication at the time of the purported impoundment that the purpose of the police was anything other than to perform the "community caretaking functions" mentioned in South Dakota v. Opperman, 428 U.S. 364, 368, 96 S.Ct. 3092, 49 L.Ed.2d 1000 (1976). As in Slockbower, our holding reflects our interpretation of the requirements both of the Fourth Amendment of the federal Constitution and of the comparable provision of our State Constitution. N.J.Const. (1947), Art. I, par. 7.

I

Defendant was arrested in an apartment on July 7, 1976 on a bookmaking charge. His automobile, properly parked on a street, was towed by the police and later searched without a warrant. Incriminating matter was found. Defendant was indicted along with seven others for conspiracy to commit the crime of bookmaking, contrary to N.J.S.A. 2A:98-1(a) and N.J.S.A. 2A:112-3, and in a second count for bookmaking, contrary to N.J.S.A. 2A:112-3. Thereafter defendant moved before Judge Barbieri in the Law Division to suppress evidence. The judge granted that aspect of the motion which was addressed to lottery slips discovered during the search of defendant's automobile. The Appellate Division denied the State's motion for leave to appeal but this Court granted leave to appeal and consolidated the appeal, for purposes of oral argument alone, with State v. Slockbower, supra, a similar question of search and seizure law being presented.

During the early summer of 1976, a bookmaking investigation was taking place in Elizabeth. Electronic surveillance was maintained by the Union County Prosecutor on one Michael Verlingo at 1381 North Avenue, Apartment A-4 in Elizabeth. On June 30, 1976 Detective Lynch of the Prosecutor's Organized Crime/Narcotic Strike Force intercepted a call from an unidentified individual saying that he wanted to pick up his money from Verlingo. Verlingo replied that the caller could pick up his money the following day at 1 p. m. Lynch advised Sergeant Robert Rowland leader of the Union County Prosecutor's Gambling Unit Office, concerning the call. Lynch monitored another call on July 7, 1976 indicating that an unidentified caller would see Verlingo at 8 p. m. that evening. Lynch again notified Rowland. This was shortly before search warrants were to be executed on the Verlingo premises.

At the suppression hearing, Lynch indicated that he believed the unidentified callers of June 30 and July 7 were one and the same person. He said that he had heard this voice five to seven times prior to July 7.

After being informed of the June 30 call, the Elizabeth Police Department stationed two detectives at the Verlingo residence on July 1 for the purpose of identifying the party who was scheduled to arrive at 1 p. m. They observed a gray Lincoln Continental pull up to 1381 North Avenue. A man entered the building and emerged five minutes later. The officers ascertained by radio that the vehicle was registered to Enrico Ercolano (defendant's brother), of Jersey City.

A search warrant for the apartment was obtained on July 7, 1976 and planned for execution that evening. The warrant was executed on the evening of that day while police awaited the arrival of the expected visitor. They had orders to arrest him. Defendant arrived at the premises in the same Lincoln automobile which had been observed on July 1. As he entered the building after parking the vehicle at the curb he was arrested on grounds of conspiracy in gambling activity. At the direction of an assistant Union County prosecutor present on the occasion, the police had the car towed to a police garage for its own protection from tampering while its driver was being investigated. It is entirely clear from the testimony of all the State witnesses that the protection of the vehicle was the only purpose of the police in impounding the car. Defendant was subsequently asked for permission to search the car but refused, saying the vehicle belonged to his brother. It was conceded that the car was legally parked on North Avenue. The street was a residential but well trafficked one. The particular reasons given by the police for the impoundment at the hearing on the motion to suppress were that the car was new, the thoroughfare was a busy one and the driver was not the owner. Before the car was towed away it was subjected to an "outside" inventory extending to the hubcaps, antennae and "things from the front of the car." No further explication of this was given.

About an hour and a half after the car was towed to police headquarters Sergeant Rowland went to the garage where the car had been placed and searched it, "for the safety of the vehicle"; to make sure it was "in the same shape" as when it was towed away. However, he also said that before entering the vehicle he observed from outside some papers with writing on them on the console between the front seats. He could not read the papers but he "surmised" they might be evidence in the investigation. When the papers were retrieved from the car during the search they were seen to constitute records of amounts owed to or from bettors or bookmakers.

Judge Barbieri, for the Law Division, granted defendant's motion to suppress the papers taken from the car. He concluded that the concern purportedly manifested by the police for the safety of the car was not a sufficient justification for its search without a warrant in these circumstances. We agree.

We emphasize preliminarily that at no time in the history of this case has the State contended that the car was searched on probable cause of its containing seizable objects such as fruits, instrumentalities or evidence of crime. Had the State argued such a theory at the motion to suppress it would have been of at least questionable merit on the proofs taken. ¹ Sergeant Rowland testified that when the car was impounded he was not "curious to find out whether or not there was any gambling paraphernalia in the car." If he had been "curious," he said, that would have had nothing to do with the reason the car was taken which was solely for its own protection. If the police had no probable cause to search the car when it first reached the North Avenue building, they certainly would have had no legal ground to search it without a warrant on probable cause grounds later, after it had been removed to the police garage, even if factual probable cause existed at the later time based on the observation of the paper slips. The vehicle was then no longer mobile and was under control of the police. A warrant would have been requisite. See Coolidge v. New Hampshire, 403 U.S. 443, 462-464, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Chambers v. Maroney, 399 U.S. 42, 51-52, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970). ²

Thus the validity Vel non of the search must depend completely on whether there was a valid impoundment in relation to which the search constituted a reasonable inventorying of the contents of the vehicle. In this case it does not appear that an inventory was ever made of the contents of the vehicle after the retrieval of the gambling slips. But more important, the impoundment of the car by the police in the first instance was unreasonable in a Fourth Amendment or Art. I, par. 7 sense because not reasonably necessary for community safekeeping purposes as against an appropriate regard for the privacy interests of the driver of the car.

In our opinion in State v. Slockbower, supra, we reviewed the impoundment-inventory cases throughout the country, including South Dakota v. Opperman, supra, and concluded that the most soundly reasoned of them "insisted upon a factual showing of substantial police need, in the light of the constitutional regard for the privacy interests of automobile drivers, before approving the impoundment of a motor vehicle." (397 A.2d p. 1053). In particular we approved the rationale of a number of such cases, developed with a sense of balancing the right of privacy against legitimate police safekeeping functions, "that if the circumstances that bring a vehicle properly to the attention of the police are such that its driver, even though arrested, is able to make his own arrangements for its custody, or if the vehicle can be conveniently parked and locked without...